2013 was a year that was dominated by the issue of sexual assault and the military justice system’s handling of it. Last year’s top story is where much of this focus began. The horrible Invisible War “documentary” and its producers portrayed the military justice system as unable to handle sexual assault cases and advocated taking the decision in sexual assault cases out of the chain of command. And then came the Wilkerson decision.

On Nov. 5, 2012, LTC James Wilkerson was sentenced to a dismissal and one year confinement for the sexual assault of a house guest while stationed with his wife at Aviano AFB. On February 27, 2013, the convening authority in the case, Lieutenant General Craig Franklin exercised his authority under Art. 60, UCMJ and set aside the members’ findings and sentence in the case.

On the heels of The Invisible War and its supporters decrying the chain of command as a good ol’ boy network, General Franklin’s action sent them into a frenzy. Senators and congressmen immediately weighed in on the general’s action calling it “simply unacceptable and rais[ing] serious concerns about the military justice system as a whole.” Senators Boxer and Shaheen called on SecDef Hagel to, amusingly, “take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions.” It was an amusing request because, of course, Congress gave CAs the power to set aside findings and sentences in Article 60(c), so it was really up to the Senators to change the law.

Meanwhile, the CA explained his actions in a thorough memo describing why he took his action, which didn’t help his cause or LTC Wilkerson’s at all. Even though he was in essence acquitted, LTC Wilkerson’s name was removed from the promotion list. And he did himself no favors when a month later it was discovered he had an extra-martial affair, prior to the alleged rape, and fathered a child with his mistress. Reports about the investigation say that it also revealed that LTC Wilkerson may have used US government property to further the affair by flying “home” to see the mistress. As Stars and Stripes reports, here, all this led to administrative proceedings against LTC Wilkerson, who chose to retire effective 1 Jan 2014. He’ll retire in the last grade which the Air Force determined that he satisfactorily served, as a Major. The Air Force FOIA page for the entire case and subsequent investigation is here, the investigation that led to LTC Wilkerson’s retirement as a Major is here.

General Franklin and now Major Wilkerson weren’t the only ones affected by the fallout from General Franklin’s Art. 60 decision. One of America’s most respected and decorated astronauts, Lieutenant General Susan Helms, raised the ire of Senators when she took similar action in a sexual assault case before her. As a result of that ire, her then pending nomination to be Vice Commander of Air Force Space Command was placed on permanent hold. Helms sadly withdrew her nomination and retired this year after Senators refused to put her nomination back on track.

General Franklin’s action was one of the more memorable actions of 2013 and set the stage for the reforms that Congress and the President recently enacted to strip CA’s of the power to overturn courts-martial findings, coverage here and here. Again, making this a no brainer in our Top 10.

2 Responses to “Top Ten Military Justice Stories of 2013 – #5: The Wilkerson Court-Martial and Side Effects”

Great entry and narrative! UCI anyone? If anyone doubts the cancerously corrupting influence UCI poses to the UCMJ, one need only look at how Congress has behaved in coercing the military chain of command to achieve certain specific outcomes with threats of an inglorious end to a commander’s career.
I know that the statutory textual purists out there will vainly try to insist that by definition, the civilians comprising our national leadership cannot literally (or legally) commit UCI, but that blind liturgy to the status quo ignores the reality of our nation’s military, which must and will always be controlled by civilians.
Without civilian approval, a military leader’s fate is inextricably controlled by his subservience to those in the legislative and executive branches, notwithstanding his/her tactical and technical proficiency on and off the battlefield. Thus, military leaders are and will always be susceptible to civilian command influence, whether through behind-the-scenes actions such as promotion denials (by withholding legislative confirmation or by procedural bullying, such as permanent and anonymous holds on nominations) or by manipulating legislation affecting the fairness and partiality of the UCMJ process so that the outcome is an inevitability. Such a system, if used by any other country, would be called a kangaroo court by those in Congress feigning outrage at election time.
At its core, this latest UCMJ debate is about whether, in any so-called “justice system,” such civilian command influence can or should be as illegal as military command influence upon the outcomes of judicial proceedings. As long as Congress refuses to implement a true justice system, the lack of “justice” in the UCMJ will always be part and parcel of the commander-centric structure within the civilian controlled military chain of command. As someone once said: “’stuff’ rolls down hill” and “garbage in—garbage out.”
In light of both history and the foregoing analysis (if both are fully and fairly considered) anyone who still asks why we would

“…allow a couple of legal but controversial decisions by commanders [to] (sic) convince us we should undermine the authority of commanders that has served us well for more than 200 years?”

is ignoring the fact that it has NOT been just “a couple of legal but controversial decisions…” Rather, it has been many “legal but controversial decisions” that have yielded systemic changes, few of which have effectuated justice. Said another way, it HAS NOT worked so well for 200 years. There have always been outrages–one after the other–under the UCMJ. All to varying degrees of severity, publicity and legality. And each has led to both minor and major revisions (tinkering) by Congress. And each has involved alleged commander abuses or failures. Yet in each instance of tinkering, Congress left commanders in the justice system and then acts dumbfounded when adverse publicity again reveals that Congress’ pet “justice system” has failed be just.
The fact that Congress is yet AGAIN addressing yet another public UCMJ failure is a result of the heretofore much heralded and defended key component in that system: commander control and discretion. Commander discretion cannot constitute justice when it is exercise depends upon the commander’s own command-centric self-interest in the outcome with little regard to the legitimacy and merit of the necessarily competing interests of the accused and the victim.
In such a system, it is inevitable that the greater interests of justice–which necessarily include the individual interests of accuseds, victims (and even the politicians) are left unserved by the commander. And until Congress fixes that systemic weakness—until the commander is excised from the UCMJ system (beyond merely providing a report of criminal offense and/or recommendations to the prosecutor), the UCMJ will continue to be a disciplinary tool for commanders to control their troops–and for Congress to control commanders–all without regard to who gets hurt in the process or the true American concepts of due process and blind justice.

Such a system is anathema to any true system of justice, which of necessity must be blind to the outcome of a fair and unbiased trial, which necessarily leaves at least 50% of the people leaving the courtroom unhappy.

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